As reviewed in our Update last week, urban developers often need to cross their neighbors’ property lines in order to efficiently construct their projects. Last week we talked about installing shoring under the neighbors’ building to properly protect it from movement during excavation. This week we shift our attention to using the airspace of other property for construction crane overswing.
The invasion of airspace by a crane overswing is not a clear cut issue. Although property owners have rights to the “top of the atmosphere”, there are exceptions. For example, there is a right of commercial aviation over all property in the United States. See Cal. Public Utilities Code §§ 21402, 21403; Drennen v. Ventura, 38 Cal.App.3d 84, 87 (1974). Believe it or not, this issue was litigated, proving the point that there are enough lawyers to take on any case. Construction projects have created disputes between property owners over the right to use airspace. Although such use would technically be an invasion of this property right, different states have varying rules about the penalties for doing so without permission.
In New Jersey, the owners of a nine-story building hung scaffolding over an adjacent three-story building, occasionally only six inches above the smaller building’s roof. The smaller building’s owner sought an injunction prohibiting the use of the scaffolding over the airspace of the building. The court concluded that because the smaller building’s owner had never made any use of the airspace above the building, he had no right to prevent the owners of the larger building from hanging scaffolding. See Slotoroff v. Nassau Associates, 428 A.2d 956 (N.J. Sup. Ct. Ch. Div. 1980). In Illinois, in contrast, the owner of a smaller building sought both an injunction and money damages as a result of scaffolding from a larger building under construction hanging over the property line. Concluding that the owner had not demonstrated any harm from the presence of the scaffolding other than the threat of possible future negligence from falling materials, the court dismissed the case entirely. Geller v. Brownstone Condominium Ass’n, 402 N.E.2d 807 (Ill. App. Ct. 1980).
California applies a “reasonable use” standard. Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. 1936). The oft-repeated right to the “top of the atmosphere” is not literally true in California. Instead, a landowner owns only so much of the airspace above ground as it can “make good use of.” An adjacent landowner has violated this right when there is some “actual interference” with the landowner’s use and enjoyment of the land.
In the context of tower cranes, developers need to consider the property over which the crane would swing. For example, if a crane is hundreds of feet in the air and hangs over a two-story building or a parking lot, the presence of the crane likely does not impede the existing use of the property. If the crane hangs over a public park or open space, the presence of shadows on the property may technically interfere with the use of the park by depriving the park of sunlight. However, the amount of harm caused by shadows that only cover a small portion of the park would be minimal. Nevertheless, a best practice may be to avoid casting shadows during the times of day when people would use the park, such as the lunch hour. Finally, even if a tower crane traverses airspace over a high-rise building, unless there is some use made of the airspace above the building, or the crane interferes with light, the high-rise owner might not have any harm on which it could sensibly seek an injunction or damages in a California court.
While developers must apply for permission to use tower cranes, the application process does not involve notifying neighbors that a crane may cross over the airspace above the neighbor’s property.
Of course, it is always better to obtain permission for the use of airspace, if possible. The threat of litigation, or complaints to the City Building Department, are never helpful to the project and could cause delay. Early discussions with the neighbors will best serve the developer and avoid disputes. It will significantly benefit the developer to come up with a package of protections to show the neighbor, including comprehensive insurance, experience and safety record of the construction company, and a depiction showing that loads will not be carried over the neighbor’s property.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
